Citation Nr: 1437105
Decision Date: 08/19/14 Archive Date: 08/27/14
DOCKET NO. 10-01 942 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri
THE ISSUE
Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
J. Nichols, Associate Counsel
INTRODUCTION
The Veteran had periods of active duty for training and inactive duty training as a member of the Army Reserve/National Guard between August 1972 and October 1993.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the RO which denied entitlement to a TDIU.
In December 2012, the Board remanded this matter for further development.
A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal. There are no uploaded documents in the Veterans Benefits Management System (VBMS) at this time.
FINDINGS OF FACT
1. The Veteran is in receipt of service connection for a right elbow disability with carpal tunnel syndrome (40 percent disabling) and a mood disorder as secondary to his service-connected right elbow disability (30 percent disabling); both disabilities arise from a common etiology or single accident. His combined rating is 60 percent.
2. The combined effects of the Veteran's service connected disabilities are shown as likely as not to render him unemployable.
CONCLUSION OF LAW
The criteria for the assignment of a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act (VCAA) defines VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).
To the extent the action taken hereinbelow is favorable to the Veteran and considered a full grant of benefits requested, further discussion of VCAA is not necessary at this time.
Pertinent Law and Analysis
VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013).
Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment.
Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
For the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident can be considered together to meet the 60 percent criteria. See id.
The Veteran is in receipt of service connection for a right elbow disability with carpal tunnel syndrome (rated as 40 percent disabling) and a mood disorder as secondary to his service-connected right elbow disability (rated as 30 percent disabling), with both disabilities arising from a common etiology or single accident. Therefore, his combined rating is 60 percent, effective on March 4, 2008. He is thus eligible for consideration for a TDIU on a schedular basis. See id.
VA's General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992).
For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved.
For the following reasons, the Board finds that the combined effects of the Veteran's service-connected disabilities of a right elbow disability and mood disorder render him unable to secure or follow a substantially gainful occupation.
The Veteran's March 2010 application for increased compensation based on unemployability, VA Form 21-8940, shows that his highest level of education completed was grade school. It also shows that he last worked in 1998 as a welder and lost his work due to his psychiatric condition.
The Veteran had submitted a prior application for his TDIU claim, VA Form 21-8940, in July 2001, when he wrote that he last worked in 1994 as a welder. He remarked that his right elbow prevents him from actually being able to weld because his hand shook and his elbow gave out with pain. He indicated that welding was the only occupation that he was able to do.
A December 2003 VA examination report indicates that the Veteran last worked full-time in 1993 and was self-employed part-time since then.
The Veteran was afforded two VA examinations in February 2013 for his right elbow and psychiatric disability pursuant to a December 2012 Board remand. For the elbow, the examiner indicated that the Veteran's disability affected his ability to work in that repetitive usage to include lifting and carrying would be a problem with the right elbow. The examiner also remarked that the Veteran had carpal tunnel as part of his elbow disability and was still able to be employed.
The VA psychiatric examination report indicated, in pertinent part, that the Veteran had been awarded Social Security Administration disability benefits due to his mental health disability beginning in 2002.
With respect to employability, the examiner remarked that the Veteran could concentrate and persist on simple to moderately complex tasks during a normal workday and was able to handle situations involving supervisors and co-workers. Thus, he was considered to be able to obtain and sustain active or sedentary employment.
The Board recognizes that the two separate VA examinations did not consider the combined effects of both the psychiatric disorder and the right arm disability on the Veteran's ability to sustain gainful employment. Each examination report only discussed the Veteran's limitations as to the specific disability being evaluated. Furthermore, the Veteran's work experience and education background were not fully assessed. Thus, for this reason, the Board finds these opinions have limited probative value.
However, the VA medical opinions, in the Board's opinion, when read together, do serve to establish that the Veteran would be prevented from working at any employment that would involve strenuous labor of the type that he had performed in the past.
The Veteran is shown to have worked for approximately 27 years as a welder, the only job with which he was familiar. He had no more than a grade school education. Moreover, he had not maintained an office-type of job or been employed in any sedentary work in the past, and his past employment history would be described as involving manual labor intensive jobs (e.g., welding).
To the extent that one VA examiner found that the Veteran could maintain work at sedentary employment, his limited education and work background were not addressed.
While that VA examiner found that the Veteran could accomplish somewhat simple tasks and deal with others at work, this was not based on actual observation under employment conditions. The submitted Social Security Administration records show that the Veteran was determined to have severe impairment due to his psychiatric disorders in performing basic work activities.
This finding was based on evidence that included medical opinions that the Veteran had "no useful ability to deal with work stresses and demonstrate reliability" or "to maintain attention/concentration and to follow work rules." Given this evidence of previous industrial impairment, the Veteran's ability to perform substantially gainful employment of a sedentary nature would be limited.
In considering the entire record, the Board finds that the service-connected mental and physical disabilities, in combination, would realistically preclude him from obtaining and maintaining substantially gainful employment. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner").
Consequently, on this record, the evidence is found to be in relative equipoise in showing that the Veteran as likely as not is precluded from securing and following a substantially gainful occupation consistent with education and work history by his service-connected disabilities.
In resolving all reasonable doubt in the Veteran's favor, a TDIU rating is warranted.
ORDER
A TDIU rating is granted, subject to the regulations governing the payment of VA monetary benefits.
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STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs